Albany Ambulette Service - Order, September 21, 1998

Order, September 21, 1998

the Alleged Violation of Article 17 of
the New York State Environmental Conservation Law, and 6 NYCRR Parts 612 and 613

- by -

Albany Ambulette Service, Inc.

Respondent

ORDER

Case No. R4-2074-98-07

WHEREAS:

A Motion for an Order Without Hearing dated July 31, 1998, and a supporting affidavit of Thomas Sperbeck, were duly served on August 1, 1998, upon the Respondent, Albany Ambulette Service, Inc.

Respondent has not responded to the Motion and, thus, not disputed the Department Staff's allegations.

The Motion and supporting papers were forwarded to the Department's Office of Hearings and Mediation Services for review, and the matter was assigned to Administrative Law Judge (ALJ) Frank Montecalvo who has submitted a Report thereon.

Upon review of the ALJ's Report (copy attached) and the record of this proceeding, I concur with its Findings of Fact, Conclusions of Law, and Recommendations which establish that the Respondent failed to comply with Paragraph 3(e) of a Schedule of Compliance attached to Order on Consent Number R4-1970-97-04 by failing to investigate and remediate soil and groundwater contamination located at 650 Myrtle Ave., Albany, New York, (the "site") after Staff told the Respondent to do so.

NOW, THEREFORE, have considered this matter:

I find that no hearing is required to determine the facts supporting the need for the Respondent to submit an investigation and remediation plan for the petroleum contamination at the site and to carry out the terms of the remediation plan because there are no material facts in dispute;

I find that Respondent has not complied with the terms and conditions of paragraph 3 (e) of the Schedule of Compliance of Order on Consent R4-1970-97-04;

I find that the Department Staff is entitled to judgment and to the relief requested in their Motion as a matter of law; and

I hereby ORDER that Respondent shall comply with the requirements below:

Respondent shall pay a penalty of $11,000;

Respondent shall comply with paragraph 3(e) of the Schedule of Compliance of Order on Consent R4-1970-97-04 and do the following:

Within 30 days of service of this Order, Respondent shall submit a site remediation plan to the Department that includes resampling of wells and the direction of groundwater flow. The remediation shall be in accordance with 6 NYCRR Part 703 for groundwater contamination and Spill Technology and Remediation Series ("STARS") guidelines for soil contamination or a Department approved alternative. The site remediation plan shall include a schedule for initiating and completing a remediation. Remediation shall be initiated within 100 days of plan approval.

The provisions, terms and conditions of this Order shall bind the Respondent, its officers, directors, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

All communications between the Respondent and the Department concerning this Order shall be made to the Director, New York State Department of Environmental Conservation , Region 4 Headquarters, 1150 North Westcott Road, Schenectady, NY 12306-2087.

Office of Hearings and Mediation Services
50 Wolf Road
Albany, New York 12233-1550

In the Matter of

the Alleged Violation of Article 17 of
the New York State Environmental Conservation Law and 6 NYCRR Parts 612 and 613 by

Albany Ambulette Service, Inc.
402 McCormick Road
Albany, NY 12208

Respondent

Case No. R4-2074-98-07

REPORT

- by -

/s/

Frank Montecalvo
Administrative Law Judge

PROCEEDINGS

Pursuant to a Motion dated July 31, 1998, the New York State Department of Environmental Conservation (the "Department") Region 4 Staff ("Staff") has moved for an Order Without Hearing pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Section 622.12 against Albany Ambulette Service, Inc., 402 McCormick Road, Albany, New York 12208 (the "Respondent"). Ann Lapinski, Esq., Assistant Regional Attorney, represents the Department Staff. The Respondent has not responded to the Staff's Motion.

The Charge:

The Staff charges the Respondent with violation of Article 17 of the New York State Environmental Conservation Law ("ECL") and 6 NYCRR Parts 612 and 613, by its failure to comply with Paragraph 3(e) of a Schedule of Compliance attached to Order on Consent Number R4-1970-97-04. In particular, the Staff contends that the Respondent entered into the Order on Consent on August 5, 1997, but failed to investigate and remediate soil and groundwater contamination located at 650 Myrtle Ave., Albany, New York, after Staff told the Respondent to do so. The Staff argues that the violation is clear and that there are no material issues of fact.

The Relief Requested:

The Staff requests that the Commissioner issue an Order finding that no hearing is required, that Respondent has not complied with the Schedule of Compliance, and that the Department is entitled to judgment and the relief requested as a matter of law; and ordering that the Respondent pay a penalty of $11,000, comply with paragraph 3(e) of the Schedule of Compliance, submit a site remediation plan for Department approval containing specified elements within 30 days of the Commissioner's order, and initiate remediation within 100 days of plan approval.

FINDINGS OF FACT

("Findings")

Respondent's failure to respond to the Motion.

On July 31, 1998, Josephine Peconie of the Department's Region 4 Staff sent the instant Motion for Order Without Hearing and supporting affidavit of Thomas Sperbeck via certified mail with return receipt to Troy Mackey, Albany Ambulette Service, 402 McCormick Rd., Albany, NY 12208. Ms. Peconie later received the return receipt indicating a date of delivery of August 1, 1998 and signed by "Mackey."

The Motion noted that the Respondent must file a written response to the Motion with the Chief Administrative Law Judge within twenty days of its receipt. The Motion also stated that failure to respond to the Motion constitutes a default and may result in a default judgment. The Motion also recited the particular relief that Staff has requested.

As of the date of this report which is more than 20 days after the Motion was received, the Respondent has not filed a response.

Staff's claim

On August 5, 1997, the Respondent entered into Order on Consent Number R4-1970-97-04 (the "Order on Consent") with respect to a site located at 650 Myrtle Ave., Albany, New York (the "site").

Pursuant to the requirements of the Order on Consent, the Respondent permanently closed the underground storage tanks in-place at the site and conducted an assessment of petroleum contamination at the site. The Respondent submitted the site investigation report to the Department on September 30, 1997 indicating significant soil contamination on the site.

Paragraph 3(e) of the Schedule of Compliance attached to the Order on Consent provides that:

"(e) Respondent shall satisfactorily investigate and remediate any contaminated soil and/or groundwater in accordance with 6 NYCRR part 703 for groundwater contamination and STARS guidelines for soil contamination or a Department approved alternative."

On October 16, 1997, Mr. Sperbeck of the Department wrote to the Respondent and requested that the Respondent submit a work plan by October 31, 1997, addressing the remediation needed on the site.

As of July 31, 1998, no remediation plan had been submitted.

Respondent needs to submit a remediation plan that will include the direction of groundwater flow in order to properly determine the appropriate method of remediation. The plan also needs to include a schedule for initiating and completing the remediation. For expeditious completion of the remediation, the remediation should be initiated within 100 days of approval of the plan.

The Order on Consent at Paragraph I. B. contains stipulated penalties that apply to each day that a deadline is missed. The amounts are: $1,000 per day for the first 5 days, $5,000 per day for days between 5 and 15, and $10,000 per day for each day thereafter.

CONCLUSIONS OF LAW

("Conclusions")

Service of Staff's Motion for Order Without Hearing was complete on August 1, 1998.

Respondent's failure to respond to the Motion is a default that waives Respondent's right to a hearing and permits the above Findings to be based solely upon the Staff's allegations (since they have not been disputed).

Respondent violated Paragraph 3(e) of the Schedule of Compliance attached to the Order on Consent when the Respondent failed to submit a work plan for addressing the remediation needed at the site.

Respondent's violation entitles Staff to the relief requested in its Motion.

RECOMMENDATIONS

As requested by the Department Staff, it is recommended that the Commissioner issue an Order:

Finding that no hearing is required to determine the aforesaid facts supporting the need for the Respondent to submit an investigation and remediation plan for the petroleum contamination at the site and to carry out the terms of the remediation plan because there are no material facts in dispute;

Finding that Respondent has not complied with the terms and conditions of paragraph 3 (e) of the Schedule of Compliance of Order on Consent R4-1970-97-04;

Finding that the Department Staff is entitled to judgment and to the relief requested in their Motion as a matter of law; and

Ordering that Respondent shall comply with the requirements below:

Respondent shall pay a penalty of $11,000;

Respondent shall comply with paragraph 3(e) of the Schedule of Compliance of Order on Consent R4-1970-97-04 and do the following:

Within 30 days of the effective date of the Commissioner's Order, Respondent shall submit a site remediation plan to the Department that includes resampling of wells and the direction of groundwater flow. The remediation shall be in accordance with 6 NYCRR Part 703 for groundwater contamination and Spill Technology and Remediation Series ("STARS") guidelines for soil contamination or a Department approved alternative. The site remediation plan shall include a schedule for initiating and completing a remediation. Remediation shall be initiated within 100 days of plan approval.